United States v. David Read

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 21 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 21-50154
Plaintiff-Appellee, D.C. No.
2:18-cr-00224-DOC-1
v.
DAVID MATTHEW READ, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
Argued and Submitted March 9, 2022
Pasadena, California
Before: BERZON, TALLMAN, and FRIEDLAND, Circuit Judges.
David Matthew Read appeals the district court’s order denying her1 motion
for compassionate release under 18 U.S.C. § 3582(c)(1)(A). Read pleaded guilty
to conspiracy to commit access device fraud, use of unauthorized access devices,
and aggravated identity theft. She is serving a 70-month custodial sentence at
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
1
Read is a transgender woman. We refer to Read using the pronouns with which
she identifies.
Federal Correctional Institution Phoenix. Read argues that extraordinary and
compelling reasons warrant a reduced sentence because her HIV diagnosis puts her
at severe risk from Covid-19 disease and the Bureau of Prisons cannot control the
spread of the virus in FCI Phoenix. Additionally, Read asserts she demonstrated
strong efforts towards rehabilitation. We have jurisdiction under 28 U.S.C. § 1291to review the district court’s order denying compassionate release. We affirm.
As a preliminary matter, we agree with Read and the government that the
district court erred in treating as binding the policy statement contained in U.S.S.G.
§ 1B1.13 when it evaluated whether Read had demonstrated an “extraordinary and
compelling reason[]” for her release under 18 U.S.C. § 3582(c)(1). Our recent
decision in United States v. Aruda holds that § 1B1.13 is not an “applicable policy
statement” that district courts must consider under 18 U.S.C. § 3582(c)(1)(A) for
defendant-filed motions for compassionate release. 993 F.3d 797, 802 (9th Cir.
2021) (per curiam). The district court erred in this respect, but it also ruled on an
alternative ground by balancing the 18 U.S.C. § 3553(a) factors, consistent with
the compassionate release statutory framework. See 18 U.S.C. § 3582(c)(1)(A);
United States v. Keller, 2 F.4th 1278, 1284 (9th Cir. 2021) (per curiam). This is a
legally sufficient, independent basis to affirm the district court’s order. See Keller,
2 F.4th at 1284 (“[A] district court that properly denies compassionate release need
not evaluate each step [under § 3582(c)(1)(A)].”); see also United States v.
2
Feingold, 454 F.3d 1001, 1014 (9th Cir. 2006). We therefore hold that the Aruda
error was harmless.
Contrary to Read’s contentions, the district court acted well within its
discretion and did not err in analyzing the § 3553(a) factors, even assuming she
had demonstrated an extraordinary and compelling reason for a sentence
modification.2 The court discussed the compassionate release framework and
correctly applied the law as it pertains to § 3553(a). The court expressed its
concern with Read’s behavior while incarcerated and the fact that she was not
deterred from committing additional crimes after her prior 37-month federal
sentence.3 The district court explained that Read had violated the terms of her
previous supervised release by continuing to commit crimes, including embezzling
$7,300 from a local church and stealing donation checks from an animal rescue
organization. Additionally, BOP continued to designate Read with a “high risk”
recidivism level. And at the time of the district court’s order, Read had served less
2
Read did not raise and therefore forfeited any argument that the district court
erred by not considering her medical condition as part of the § 3553(a) analysis.
See Fed. R. App. P. 28(a)(8)(A); McKay v. Ingleson, 558 F.3d 888, 891 n.5
(9th Cir. 2009).
3
The record shows that Read’s “continuous crime spree,” as the district court
termed it, included defrauding an elderly woman while on supervised release.
Moreover, Read absconded from pretrial supervision and continued with the
fraudulent scheme, using another victim’s credit card to make nearly $30,000 in
fraudulent purchases. While under indictment in the present case, Read also may
have committed additional crimes.
3
than half of her 70-month sentence. Balanced against these factors, which the
court determined not to be outweighed, the district court also considered Read’s
rehabilitation efforts, “acknowledg[ing] that [she] has committed herself to self-
development and personal growth by taking courses and participating in a job fair
program,” and noted that Read had proposed a plan for her transition back into
society.
In sum, the district court did not abuse its discretion in reaching the
reasonable conclusion that the § 3553(a) factors weighed against Read’s release.
See Keller, 2 F.4th at 1284 (recognizing the deference we must give the district
court when making these discretionary decisions); cf. Chavez-Meza v. United
States, 138 S. Ct. 1959, 1965–68 (2018); United States v. Wilson, 8 F.4th 970,
976–77 (9th Cir. 2021) (per curiam) (“[A] minimal explanation is adequate in light
of the deference due to the judge’s professional judgment and the context of a
particular case.”).
AFFIRMED.
4